Citation Nr: 0403581
Decision Date: 02/09/04 Archive Date: 02/23/04
DOCKET NO. 03-08 480 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) under 38 U.S.C.A. § 1318 (West 2002).
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from March 1967 to March
1969. He died in November 2000, and the appellant is his
surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2001 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Portland, Oregon.
The appellant's appeal also initially included the issues of
eligibility to Dependents' Educational Assistance under 38
U.S.C.A., chapter 35. She did not, however, list this issue
as remaining on appeal in her March 2003 Substantive Appeal.
Accordingly, the Board does not consider this issue to be on
appeal presently.
FINDINGS OF FACT
1. All relevant evidence necessary to render a decision on
the appellant's claims has been obtained by the RO, and the
RO has notified her of the type of evidence needed to
substantiate her claims.
2. The veteran died in November 2000; his immediate cause of
death was adenocarcinoma of the pancreas.
3. At the time of death, service connection was in effect
for no disabilities.
4. There is no competent medical evidence showing a causal
relationship between the cause of the veteran's death and his
active service.
5. At the time of the veteran's death, there was a pending
claim for service connection for pancreatic cancer, liver
problems, a skin rash, and chloracne; the veteran's death,
however, occurred before adjudication of this claim, and the
cause of his death has been found to not be related to
service.
CONCLUSIONS OF LAW
1. The cause of the veteran's death was not incurred or
aggravated as a result of service. 38 U.S.C.A. §§ 1110,
1112, 1113, 1131, 1137, 1310, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2003).
2. The criteria for DIC under 38 U.S.C.A. § 1318 have not
been met. 38 U.S.C.A. § 1318, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.22, 3.159, 20.1106 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's duties
As an initial matter, the Board observes that, during the
pendency of this appeal, substantial revisions have been made
to the laws and regulations concerning VA's duties in
developing a claim for a VA benefit. On November 9, 2000,
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) was enacted. The VCAA
redefines VA's obligations with respect to its duty to assist
the claimant with the development of facts pertinent to a
claim and includes an enhanced duty to notify the claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. This change in the law is applicable
to all claims filed on or after the date of enactment of the
VCAA or filed before the date of enactment and not yet final
as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126.
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by VA as of that date, with the exception of the
amendments to 38 C.F.R. § 3.156(a) (relating to the
definition of new and material evidence) and to the second
sentence of § 3.159(c) and § 3.159(c)(4)(iii) (pertaining to
VA assistance in the case of claims to reopen previously
denied final claims), which apply to any application to
reopen a finally decided claim received on or after August
29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the appellant's claims,
and no further assistance is required in order to comply with
VA's statutory duty to assist her with the development of
facts pertinent to her claims. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. Specifically, the RO has obtained records
corresponding to medical treatment reported by the appellant,
and there is no indication of additional relevant medical
evidence that has not been obtained by the RO to date.
Moreover, VA has obtained a medical opinion regarding the
etiology of the cause of the veteran's death.
VA's duty to notify the appellant of the evidence necessary
to substantiate her claims has also been met, as the RO
informed her of the need for such evidence in a January 2003
Statement of the Case. See 38 U.S.C.A. § 5103. This
issuance includes the provisions of 38 C.F.R. § 3.159 (2003),
indicating of the type of evidence necessary to substantiate
the appellant's claims, as well as which portion of that
evidence (if any) was to be provided by her and which portion
VA would attempt to obtain on her behalf. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
II. Entitlement to service connection for the cause of the
veteran's death
Service connection may be granted for the cause of the
veteran's death if a disorder incurred in or aggravated by
service either caused or contributed substantially or
materially to the cause of death. For a service-connected
disability to be the cause of death, it must singly or with
some other condition be the immediate or underlying cause, or
be etiologically related. For a service-connected disability
to constitute a contributory cause, it is not sufficient to
show that it casually shared in producing death. Rather, it
must be shown that there was a causal connection.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. Additionally, certain chronic diseases, including
malignant tumors, may be presumed to have been incurred
during service if manifested to a compensable degree within
one year of separation from active military service.
38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for a disability which
is proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a).
VA regulations also provide that a veteran who had active
military, naval, or air service in the Republic of Vietnam
during the Vietnam Era and has one of the diseases listed in
38 C.F.R. § 3.309(e) shall be presumed to have been exposed
during such service to an herbicide agent, unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 U.S.C.A.
§ 3.307(a)(6)(iii). In such circumstances, service
connection may be granted on a presumptive basis for the
diseases listed in 38 C.F.R. § 3.309(e). See 38 C.F.R.
§ 3.307(a)(6)(ii). In this regard, the Board observes that
pancreatic cancer is not among the diseases listed as
herbicide-related in 38 C.F.R. § 3.309(e).
In the present case, the veteran died in November 2000. At
the time of death, service connection was not in effect for
any disabilities.
As indicated in his death certificate, the veteran's
immediate cause of death was adenocarcinoma of the pancreas,
with a two-month interval between onset and death. No
underlying causes were listed.
Upon reviewing the veteran's service medical records, the
Board notes that he was not treated for any pancreatic
disorders at any time during service. He was seen with
complaints of substernal burning in March 1969, but the
treating physician doubted peptic ulcer disease.
In October 2000, the veteran was seen at a private medical
facility for complaints of nausea, urine discoloration, and
abdominal pain. A CT scan and a biopsy revealed an
adenocarcinoma of the pancreas. This disease was determined
to be inoperable, and the veteran declined chemotherapy in
November 2000.
A. W. Holt, M.D., the veteran's physician, provided a medical
statement in January 2001. In this statement, Dr. Holt noted
that pancreatic cancer had been diagnosed in September 2000
and resulted in the veteran's death approximately two months
later. Dr. Holt also indicated that the veteran's in-service
exposure to Agent Orange was "[o]f interest" and that
"[t]his fact should be noted and given to the proper medical
authorities who are providing ongoing evaluation of these
statistics."
The veteran's claims file was reviewed by a VA doctor in
August 2001. In a statement from that same month, the VA
doctor noted that pancreatic cancer is not one of the
presumptive conditions considered to be automatically related
to Agent Orange exposure and that a "long period of time"
had passed between the veteran's service and his death in
2000. In short, the doctor concluded that the death of the
veteran was not related to Agent Orange exposure in service.
In this case, the Board finds no competent medical evidence
of record suggesting that the veteran's pancreatic cancer,
the immediate cause of his death, was more likely than not
etiologically related to service. While Dr. Holt's statement
raises the possibility of Agent Orange involvement with
regard to the development of pancreatic cancer, the Board
again notes that pancreatic cancer is not one of the
herbicide-related diseases listed in 38 C.F.R. § 3.309(e).
Moreover, the August 2001 VA medical statement, based on a
claims file review, clearly indicates that the veteran's
pancreatic cancer was not related to herbicide exposure.
The only other evidence of record supporting the appellant's
claim is her own lay opinion. In her March 2003 Substantive
Appeal, the appellant asserted that the veteran's pancreatic
cancer developed over a period of time and, if attributable
to Agent Orange, might well have gone undetected during
service.
The Board is empathetic with the appellant's argument and
acknowledges her husband's honorable active service.
Nonetheless, competent medical evidence is still required to
support the appellant's claim. Opinions as to etiology are
within the realm of medical personnel and not laypersons,
such as the appellant. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992). Accordingly, her lay testimony does
not constitute competent medical evidence and lacks probative
value.
In summary, the Board is compelled to conclude that the
preponderance of the evidence is against the appellant's
claim of entitlement to service connection for the cause of
the veteran's death, and this claim must be denied. In
reaching this conclusion, the Board acknowledges that, under
38 U.S.C.A. § 5107(b), all doubt is to be resolved in the
claimant's favor in cases where there is an approximate
balance of positive and negative evidence in regard to a
material issue. As the preponderance of the evidence is
against the appellant's present claim, however, that section
is not applicable in this case. See Gilbert v. Derwinski, 1
Vet. App. 49, 55 (1990).
III. Entitlement to DIC under 38 U.S.C.A. § 1318
Pursuant to 38 U.S.C.A. § 1318(a), benefits are payable to
the surviving spouse of a "deceased veteran" in the same
manner as if the death were service-connected. A "deceased
veteran" for purposes of this provision is a veteran who
dies not as the result of his or her own willful misconduct,
and who either was in receipt of or entitled to receive
compensation at the time of death for service-connected
disabilities rated totally disabling. 38 U.S.C.A. § 1318(b);
38 C.F.R. § 3.22. The service-connected disabilities must
have been either continuously rated totally disabling for 10
or more years immediately preceding death or continuously
rated totally disabling for at least five years from the date
of the veteran's separation from service. Id. The total
rating may be schedular or based on unemployability.
38 C.F.R. § 3.22.
Except with respect to a claim for benefits under the
provisions of 38 U.S.C.A. § 1318 and certain other cases,
issues involved in a survivor's claim for death benefits will
be decided without regard to any prior disposition of those
issues during the veteran's lifetime. 38 C.F.R. § 20.1106.
Interpreting 38 U.S.C.A. § 1318(b) and 38 C.F.R. §
3.22(a)(2), the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (Court) found that a surviving spouse
can attempt to demonstrate that the veteran hypothetically
would have been entitled to a different decision on a
service-connected-related issue, based on evidence in the
claims folder or in VA custody prior to the veteran's death
and the law then applicable or subsequently made
retroactively applicable. Green v. Brown, 10 Vet. App. 111,
118-19 (1997). In such cases, the claimant must set forth
the alleged basis for the veteran's entitlement to a total
disability rating for the 10 years immediately preceding his
death. Cole v. West, 13 Vet. App. 268, 278 (1999).
In January 2000, in response to the above-referenced Court
decisions, VA amended 38 C.F.R. § 3.22, the implementing
regulation for 38 U.S.C.A. § 1318, to restrict the award of
DIC benefits to cases where the veteran, during his or her
lifetime, had established a right to receive total service-
connected disability compensation for the period of time
required by 38 U.S.C.A. § 1318, or would have established
such right but for clear and unmistakable error (CUE) in the
adjudication of a claim or claims. 65 Fed. Reg. 3,388 (Jan.
21, 2000). The regulation, as amended, specifically
prohibits "hypothetical entitlement" as an additional basis
for establishing eligibility.
In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the United
States Court of Appeals for the Federal Circuit (Federal
Circuit) held that, for the purpose of determining whether a
survivor is entitled to "enhanced" DIC benefits under 38
U.S.C.A. § 1311(a)(2) (under which the veteran is required to
have been rated totally disabled for a continuous period of
eight years prior to death), the implementing regulation, 38
C.F.R. § 20.1106, does permit "hypothetical entitlement."
In National Organization of Veterans' Advocates, Inc. v.
Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001)
(NOVA I), the Federal Circuit addressed a challenge to the
validity of the amended 38 C.F.R. § 3.22. Initially, the
Federal Circuit found that VA's amendment of 38 C.F.R. § 3.22
constituted an interpretive rule that did no more than
interpret the requirements of 38 U.S.C.A. § 1318 and
clarified VA's earlier interpretation of the statute. 260
F.3d at 1376-77. Upon consideration of 38 U.S.C.A. § 1318,
the Federal Circuit found that the statutory language was
ambiguous as to whether a "hypothetical" claim was allowed.
Id. at 1377. The Federal Circuit noted that 38 U.S.C.A. §
1311(a), which also has "entitled to receive" language, as
interpreted in Hix, was virtually identical to 38 U.S.C.A. §
1318, but that VA interpreted them differently. Id. at 1379.
Moreover, the Federal Circuit found that the pertinent
regulations, 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106, were
in conflict with respect to interpreting 38 U.S.C.A. §§
1311(a) and 1318. Id. The Federal Circuit remanded the case
for VA to undertake expedited rulemaking to explain the
rationale for interpreting the statutes differently or to
resolve the conflict between 38 C.F.R. § 3.22 and 38 C.F.R.
§ 20.1106. Id. at 1379-81.
On April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide
that there would be no "hypothetical" determinations under
38 U.S.C.A. § 1311(a) on the question as to whether a
deceased veteran had been totally disabled for eight years
prior to death so that the surviving spouse could qualify for
the enhanced DIC benefit. See 67 Fed. Reg. 16,309-16,317
(April 5, 2002).
In National Organization of Veterans' Advocates, Inc. v.
Secretary of Veterans Affairs, 314 F.3d 1373, 1377 (Fed. Cir.
2003) (NOVA II), after reviewing its holding in NOVA I, the
Federal Circuit observed that VA had determined that the
"entitled to receive" language of 38 U.S.C.A. § 1311(a) and
38 U.S.C.A. § 1318 should be interpreted in the same way and
that 38 C.F.R. § 3.22 provided the correct interpretation.
The Federal Circuit held that VA could properly do so and had
adequately explained its rationale. Id. at 1378. Also, the
Federal Circuit determined that VA provided a permissible
basis and sufficient explanation for its interpretation of
the statutes as a bar to the filing of new claims
posthumously by the veteran's survivor (i.e., claims where no
claim had been filed during the veteran's life or the claim
had been denied and was not subject to reopening
("hypothetical entitlement" claims)). Id. at 1379-80.
In this case, the Board finds that the criteria for DIC under
the provisions of 38 U.S.C.A. § 1318 have not been met.
Here, the veteran, who died many years after his separation
from service, had no service-connected disabilities rated as
100 percent disabling for at least 10 years prior to his
death. Indeed, as noted above, service connection was not in
effect for any disabilities at the time of the veteran's
death.
In November 2000, just prior to his death, the veteran filed
a claim for service connection for pancreatic cancer, liver
problems, a skin rash, and chloracne. The veteran's death,
however, occurred before adjudication of this claim, and, as
indicated above, the cause of his death (pancreatic cancer)
has been found to not be related to service.
Given the particular facts of this case, the preponderance of
the evidence is against the appellant's claim of entitlement
to DIC under 38 U.S.C.A. § 1318. Accordingly, this claim
must be denied. Again, as the preponderance of the evidence
is against the appellant's claim, the provisions of
38 U.S.C.A. § 5107(b) concerning the resolution of doubt are
not applicable in this case.
ORDER
The claim of entitlement to service connection for the cause
of the veteran's death is denied.
The claim of entitlement to DIC under 38 U.S.C.A. § 1318 is
denied.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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